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Alam Mahtab v Torture Claims Appeal Board / Non-refoulement Claims Petition Office [Decision On Leave Application]

Judgment Cited authorities 1 Cited in 1 Precedent Map Related
Vincent
Judgment Date26 September 2018
Neutral Citation[2018] HKCFI 2014
Year2018
Judgement NumberHCAL366/2018
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL366/2018 ALAM MAHTAB v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 366/2018

[2018] HKCFI 2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 366 of 2018

BETWEEN

Alam Mahtab Applicant
and
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office 		Putative Respondent
and
Director of Immigration Putative
Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

consideration of the documents only; or
consideration of the documents and the Applicant being present/absent in open court;

Order by The Honourable Mrs Justice Campbell‑Moffat:

Leave to apply for judicial review be refused.

Observations for the Applicant:

Procedural history

1. The Applicant entered Hong Kong legally on 13 December 2013 and was arrested by the police on 7 February 2014. The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 9 February 2014. He was released upon recognisance on 24 March 2014. His NRF claim form was submitted on 29 September 2015.

2. The Applicant attended a screening interview on 19 November 2015. The Director of Immigration (“the Director”) dismissed his claim on all applicable grounds (not including BOR 2) by Notice of Decision (“the Decision”) on 30 November 2015 and by Notice of Further Decision (re BOR2) on 12 June 2017. The adjudicator of the TCAB, Mr Kevin Browne (“the Adjudicator”), heard his appeal on 2 September 2017 and considered his appeal on all applicable grounds. The Adjudicator refused his appeal on 22 February 2018.

3. The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 7 March 2018 and did not request an oral hearing. The matter was therefore considered on the papers.

Background

4. The Applicant is an Indian national. He was born in Kiddapore and is single. He worked as a salesman between 1987 and 1997 and had his own garment business from 1997 to 2013. He and his family are supporters of the Comunist Party of India (“CPIM”). In 2012, the opposition party, the All India Trinamool Congress (“TMC”) became the ruling party. There was friction between the supporters of the two parties. In 2008, the Applicant suspected that members of TMC had killed his brother but the police and coroner’s investigations found it to be an accident. In 2011 and 2012, the friction between the parties continued and at one point a fight broke out between the two which was broken up by the police who attempted to negotiate a truce, with both sides being allowed to advertise their cause. The Applicant did incur some injuries from this fight, which were the subject of medical treatment. Later in 2012, the Applicant maintains that unknown assailants, believed to be TMC, shot at him but he was not harmed. The Applicant reported the matter but no further action was taken. The Applicant felt unsafe and moved away for a short period of time before returning home but still felt insecure. He then became a wholesaler of garments and obtained a passport to assist him to travel. In December 2013, he left India unhindered. Although he had intended to come to Hong Kong purely for business purposes, he had been told by his mother that his home had been damaged by people who had threatened to kill him and so he had decided not to return.

The non-refoulement claim

5. Under the Unified Screening Mechanism (“USM”), the Applicant’s claim is to be assessed on all applicable grounds which are:

i. Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”). Under torture risk, the Applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state. Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal. The standard of proof is a low one.

ii. Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”). Under BOR 3, the Applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state. The level of such mental or physical torture etc. must reach a minimum level of severity.

iii. Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”). Under “persecution risk”, the Applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

iv. Risk of a violation of the right to life under...

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1 cases
  • Alam Mahtab v Torture Claims Appeal Board / Non Refoulement Claims Petition Office
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 28 Febrero 2019
    ...HKCA 304; and Re SK Sarfaraj [2018] HKCA 307. 3. The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 2014. We shall not repeat the same here. 4. Briefly stated, the applicant is a national of India. He came to Hong Kong as a visitor on 31 December 2......

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